Evolutions of the jus ad bellum: the crime of aggression.

Author:May, Larry
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 a.m., Saturday, March 28, by its moderator, Davis Brown of the University of Virginia, who introduced the panelists: Larry May of Vanderbilt University; Noah Weisbord of Duke Law School; Jutta Bertram-Nothnagel, Permanent Representative of the Union Internationale des Avocats to the United Nations; Yoram Dinstein of Tel Aviv University; and Elizabeth Wilmshurst of the Royal Institute of International Affairs at Chatham House.


Well, good morning, everyone. I want to salute everyone in this room--the panelists, and especially all of you, for being here at this ungodly hour on this last day of the conference where I know a lot of people like to take off a little early. So, I salute all of you for being interested enough to be here this morning at, ouch, 9 a.m. I'm still rubbing the sleepers out of my eyes.

My name is Davis Brown and I'm with the University of Virginia. I'm kind of our crossover--well, one of our cross-over people here--because I'm a lawyer, and yet I'm also getting a Ph.D. in international relations.

I'll be moderating this roundtable, and it will not be a traditional panel format. It will be very much more of a roundtable format. Our topic is the movement to codify the crime of aggression in the International Criminal Court (ICC). This was a development that was contemplated when the Rome Statute was originally drafted, but it was a can of worms that the Rome Convention decided to leave for another day.

Well, that day is very nearly upon us. So, we have a group of distinguished scholars and practitioners here to work through some of the issues presented by the new crime of aggression.

On my far left, Yoram Dinstein, who almost needs no introduction, is with Tel Aviv University. He is the author of War, Aggression and Self-Defence, which I believe is in its fourth edition now.

And to my immediate left is Jutta Bertram-Nothnagel, who is with the Union Internationale des Avocats and has been following the work of the Special Working Group of the Crime of Aggression very closely. She knows the details in and out--almost nauseatingly so. She and I argue often, and she just runs circles around me.

To my immediate right is Elizabeth Wilmshurst from Chatham House. Next to my right is Noah Weisbord, an S.J.D. candidate at Harvard Law School and a visiting assistant professor at Duke Law School, who has also been following the Special Working Group very closely. On my far right is Larry May, a professor of Philosophy at Washington University in St. Louis but who also has a law degree and has authored a number of works on the just war tradition and aggression.

At Larry's request, we are going to start the roundtable with his comments. Larry will provide us with a more extended discussion on aggression in its historical context so that we can better understand the current developments related to the crime of aggression.

So, Larry, I'll turn over the floor to you for now. Thank you.

* PhD Candidate, University of Virginia.


Thanks, Davis.

I have just finished a four-volume work on the normative foundations of international criminal law which takes as its inspiration the just war tradition. The third volume, which is called Aggression and Crimes Against Peace, is what I will be basing some of my remarks on. In that book, I provided an analysis of aggression in the context of historical debates about the jus ad bellum principle of just cause. I am especially interested in the moral principles that might ground a conception of aggression and an understanding of humanitarian intervention.

Today, as we debate whether the crime of aggression should be under the jurisdiction of the International Criminal Court, the discussion focuses, as does the title of our panel, on jus ad bellum. The term, "jus ad helium," does not refer to individual prosecution but rather to the principles for establishing when war has been initiated for just cause and when it has been an aggressive war.

Some have said that it is impossible to get a consensus on what counts as aggression. I'll kick off our discussion this morning by taking us back historically to the debates about how to define "just cause" as well as its opposite, "aggression," in the 1,600-year movement called the "just war tradition."

To get us started, here is a relatively modern-sounding translation of part of Thomas More's sixteenth century work, Utopia, that I find quite useful. He said, "Utopians go to war only for good reasons: first, to protect their own land; second, to drive invading armies from the territories of their friends; or, third, to liberate an oppressed people in the name of humanity from tyranny and servitude."

We can begin to understand what aggressive war is by first thinking about what it is not--and I would think that, today, many would agree that wars waged for the three reasons given by More would not count as aggressive wars. Indeed, it is interesting that as far back as Augustine in the fourth century, it is held that war was most surely justified when undertaken on behalf of those who were innocently attacked, which included wars waged in defense of others as well as self-defensive wars.

It is seemingly even harder to say what constitutes aggressive war than what it is not, but here we can also draw some inspiration from another sixteenth century philosopher, Francisco Vitoria, who said, "Assuming that a prince has authority to make war, he should, first of all, not go seeking occasions in causes of war." In Vitoria' s view, in most situations, sovereigns act aggressively. When they initiate war, if the first state to use violent force does so for reasons other than the three mentioned above by Thomas More, namely for self-defense, defense of an ally, or to liberate an oppressed people, the first strike element of aggression is not alone sufficient, but it does seem to be necessary for a prima facie showing of aggression according to the tradition of the just war theorists.

One clarification of the traditional just war way of understanding aggression is that "first strike" should be seen, I believe, as shorthand for first wronging rather than for which state literally engaged in physical assault first. It may seem odd to say that the state that provokes is an aggressor rather than the state that launches an attack, but history has shown many examples of states that try to start wars stealthily by provoking other states to use violence that can then be countered by supposedly self-defense of violence.

On the sixteenthth century view taken over from Thomas More and Francisco Vitoria, only certain wrongs can warrant initiation of war. This would help make things much clearer than they often were in the just war tradition, especially in the writings of those very early medieval theorists like Augustine who said that war is unjust unless initiated to right a wrong or avenge an injustice.

Vitoria also said that engaging in acts that start a war should not count as aggression when we are under something like compulsion. A state may be compelled to go to the aid of another state or group within another state as well as to act in self-defense, and as a seventeenth century theorist, Hugo Grotius says, war is justified only if it is done to ward off a clear danger to life, not just to property, "that is immediate and imminent in point of time." Grotius makes this point to counter those, like his contemporary, Alberico Gentili, who contended that mere fear of any sort was sufficient to justify what Grotius called "anticipatory slaying."

Grotius argued that the danger must not be merely assumed but must be shown to require immediate action because of the impending harm that would result to the victim. If an assailant seizes weapons and acts in a menacing manner, this may be enough to justify anticipatory violence as long as there is a necessity for that one strike, the first blow, to avoid the imminent danger.

These theorists of the early modem just war tradition, especially More, Victoria, and Grotius, understood jus ad bellum principles as providing the prima facie case for proving state aggression as involving the first use of armed force by one state that wrongs another state, not justified by self-defense, the defense of an innocent state being attacked, or the liberation of an oppressed people in the name of humanity.

Concerning the rationale of invasion, one could follow Hugo Grotius rather than More, I believe. In 1625, Grotius said, "Right reason does not prohibit all use of force but only that use of force which is in conflict with society; that is, which attempts to take away the rights of others." In this view, states are not justified in going to war against other states merely to protect territory or property unless that territory was occupied. The reason for this is that war involves the killing of many people, and it is not at all clear why it would be a just cause to wage war that involved such killings merely to preserve territory. Indeed, if the state in question was not protecting the rights of its members, it is also unclear why a state would be justified in going to war to preserve its sovereignty in the first place.

We could then follow the Grotian principle of just cause as we figured out a way to connect just cause better with what the principles ultimately do justify, namely the killing of many people in war.

Turning just very briefly to the issue of humanitarian wars, we can gain some insight here, I believe, by looking at the eighteenth century theorist, Emmerich de Vattel. Perhaps humanitarian wars can be justified by reference to Vattel's principle of humanity, namely when it is in a state's power to help other states without risking greater harm to itself, it is permissible, perhaps even obligatory, to do so. Vattel worried about how the application of this principle could disrupt sovereignty. He thought that...

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